Excerpt: - - the ratio decidendi in both cases clearly was whether the first order fixing the time for payment had the effect of a decree or not. like the order of the subordinate judge in the case of jugarnath sahi v......and in consequence it was open to him to give further time. he did not wish to do so, though i am informed that the plaintiff was ready with the papers only one day after the allotted date. he has not however discussed the merits of the case as he would have done if he had believed himself competent to extend time. i therefore allow the appeal, remand the case under order 41, rule 23, civil p.c. and direct the lower appellate court to re-admit the appeal under its original number, and to determine on its merits the question of whether the plaintiff should be allowed an extension of time, and if the answer to this question is in the affirmative to remand the suit in accordance with the order of 18th january 1929.

Judgment:

1. The plaintiff-appellant brought a suit for demolition of the constructions on a certain plot. The suit was dismissed by the trial Court, and on the plaintiff appealing to the District Judge an order was passed remanding the suit for retrial provided that within one month the plaintiff filed certain paper 'and in case that is not done,' the order concludes:

the remand order shall not take effect and the appeal shall stand dismissed automatically.

2. The papers were not filed within the time given, and the plaintiff made an application for an extension of time. The Judge refused, saying that he had neither the power nor the wish to extend time, but held that the language of the order passed on appeal by himself was peremptory and left him no choice. He therefore dismissed the application adding:

The appeal stands dismissed automatically requiring no further order of the appellate Court.

3. An appeal has been preferred against this order, and a preliminary objection is raised on behalf of the respondents that no appeal lies from this order of the District Judge, which is merely an order refusing to extend time and has not the force of a decree. It is argued that the first order had the effect of a decree, and in fact was embodied in a decree, and as such was appealable, but that the second order was merely one refusing extension of time; and further that the Judge was as he believed himself to be, bound by the decree which he had himself given. It is argued on behalf of the appellant that the first order was an order of remand not amounting to a decree, and that it was the second order which had the force of a decree and which was subject to an appeal.

4. Counsel on either side have referred to the decisions in the cases of Suranjan Singh v. Ram Bahal Lal (1913) 35 All 582 and Jugarnath Sahi v. Kamta Prasad AIR 1914 All 55. In the first of these cases a Full Bench of this Court held that Section 148, Civil P.C. does not entitle the Court to extend the time fixed by the decree for payment of the purchase money in preemption suits, and further that an order made under Section 148, Civil P.C., is not a decree, and that it is not appealable as an order under Section 104, Civil P.C. In the second case a Bench of two Judges of this Court held that where an application had been made to set aside an ex parte decree, and the Court passed an order in favour of the applicants conditional on their paying to the plaintiffs by a certain date a sum of money as damages, an appeal would lie from the order of the Court refusing to receive the prescribed payment after the fixed date, and also that the Court had jurisdiction to extend the time. The ratio decidendi in both cases clearly was whether the first order fixing the time for payment had the effect of a decree or not.

5. In the case before the Full Bench there was a decree for pre-emption and a time was fixed for payment of the purchase money. In the second case there was an order setting aside the ex parte decree conditional on payment being made within a fixed time. In the case before me now it is clear that the learned District Judge believed that the first order had the force of a decree, and that it was not an order of remand as the appellant claims that it was. It could, it is argued, only be changed into an order of remand if the plaintiff filed certain papers before a certain date. Like the order of the Subordinate Judge in the case of Jugarnath Sahi v. Kamta Prasad AIR 1914 All 55, it is however open to criticizm as a conditional order. If the District Judge had ordered the papers to be filed by a certain date and the appeal to be put up for final orders on that date there would have been no ambiguity. Under Section 2, Civil P.C. a decree is defined as:

The formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controveray in the suit.

6. The present case is not analogous to that of a preliminary decree in a mortgage suit or in a partition suit, where the rights have been determined and only accounting remains. If the papers had been filed by the plaintiff in time the whole matter would have been re-opened, so that it cannot be said that the rights of the parties had been conclusively determined. This being so, it appears to me that the first order of the District Judge did not amount to a decree, and in consequence it was open to him to give further time. He did not wish to do so, though I am informed that the plaintiff was ready with the papers only one day after the allotted date. He has not however discussed the merits of the case as he would have done if he had believed himself competent to extend time. I therefore allow the appeal, remand the case under Order 41, Rule 23, Civil P.C. and direct the lower appellate Court to re-admit the appeal under its original number, and to determine on its merits the question of whether the plaintiff should be allowed an extension of time, and if the answer to this question is in the affirmative to remand the suit in accordance with the order of 18th January 1929.